COLAP

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness. The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.” You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem. That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different. To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being. As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry. I’m all about mixing business with pleasure, so we also chatted about basketball. Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament. Tip-off is at 2:00 PM in Hartford, CT.

The attorney told me that she’s going. She’s taking her son. When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.” But, then, the attorney said to herself “yes, I can. This is exactly why I work for myself.”

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers. Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars. Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being. That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers. Relevant to my job as bar counsel, the national report noted:

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Again, Vermont’s state action plan is here. When you have time, give it a read. Here’s the concluding paragraph from the introduction:

“Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100% We cannot neglect the issue. As a profession, we must follow-up on the action items. We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow. Great ideas. I wonder what ever became of them?”

Usually I use this column to highlight lawyers doing nonlawyerly things.

Sadly, suicide is becoming a lawyerly thing to do. As we know, over the past 4 years, at least 5 Vermont attorneys have taken their own lives. I know a sixth whose death technically was not a suicide. But it was.

We must continue to work to make the profession a healthier place.

Ten years ago today, Joanna Litt married Gabe MacConaill. Gabe was an attorney. He’s not here to celebrate his anniversary. He took his own life last month.

A few days ago, The American Lawyer published a letter from Joanna. It’s here. The Tax Prof Blog has it for free here. Reporting on the letter, Above The Law has Jill Switzer’s post on how lawyer suicides are becoming too frequent.

Joanna’s letter is heartbreaking. It should make us double our resolve to destigmatize a lawyer’s decision to admit that he or she needs help.

Sometime in the next few months, the Vermont Commission on the Well Being of the Legal Profession will issue a state action plan. I expect that the plan will reference, if not incorporate, aspects of the ABA’s mission to convince legal employers to pledge to commit to a healthier work environment. My post on the pledge is here.

Consider the pledge.

In the meantime, odds are that many of us know a lawyer who is fighting the fight that Gabe fought. Let’s do what we can to encourage that lawyer to seek help.

So that his or her Joanna doesn’t have to write a letter.

Free, confidential services are available 24/7 for people in suicidal crisis or emotional distress and for those around them. The National Suicide Prevention Lifeline is at 1-800-273-TALK (8255). A crisis text line is at 741-741.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

“Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.

Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.

Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.

Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.

Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.

Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process. The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

I do a lot of CLEs this time of year. This week, I’ve met with the Professional Responsibility Program, the State’s Attorneys, and the Chittenden County Bar Association. Later today I’m presenting at the Defender General’s training. Next week: the Attorney General’s Office and Andy Mikell’s VATIC conference.

Obviously, each presentation is different. Yet, I’ve started each (and will start each) with a report on the relatively new Vermont Commission on Well-Being in the Legal Profession. The response has been fantastic. After each presentation so far, I’ve been contacted by lawyers who are willing to get involved to help other lawyers.

For more, read on. I’m pasting in a blog that I posted a few months ago.

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services. In 2015, SAMHSA conducted a national survey on drug use and health. The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year. The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont. If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health. The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.” In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being. The groups:

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating the Vermont Commission on the Well-Being of the Legal Profession. The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change. Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group. My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions. My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting. For more information, including how to register, please visit this site.

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro. Remember: people care, help is available. If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this: when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report. Think of it as helping another human being. As I blogged last March

“In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel. Some lawyers wonder whether there is a duty to report substance abuse and mental health issues. Maybe. Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved. Some of these might sound familiar:

It’s not my business.

I don’t know for sure, could’ve been she was having a bad day.

It helps my client that he isn’t doing his job.

The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. In 2016, a the Supreme Court adopted a Comment to the rule. The Comment makes it clear that lawyers may:

Vincenzo Leoncavallo was an attorney and judge in Italy. In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival. The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910. It was then, 108 years ago, that the first public radio broadcast took place. The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son. It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.” (emphasis added).

The report includes recommendations for various stakeholder groups connected to the profession. My blog post on the Task Force’s recommendations is here.

Last week, and in response to the report, the Vermont Supreme Court created the Vermont Commission on the Well-Being of the Legal Profession. The Commission’s first meeting is later this month. The Commission includes a representative from each of the stakeholder groups identified in the Task Force’s report. Each representative will lead a sub-committee charged with reviewing the recommendations targeted at that stakeholder group. The Commission will be formally introduced at a plenary session during the Vermont Bar Association’s Midyear Meeting in March.

I expect that you’ll hear a lot about the Commission, its work, and lawyer wellness throughout 2018.

In the meantime, don’t forget that lawyer wellness isn’t all about rehab or treatment. It also includes things like work-life balance and mindfulness.

Jeena Cho is legal mindfulness strategist. She’s a leading voice on lawyer wellness. She’s a great Twitter follow and writes often for the ABA Journal.

One of Jeena’s sayings sticks with me. As I referenced in my post recommending that lawyers Make Time For What Matters, Jeena tells us:

Maybe mediation isn’t your thing. Maybe it’s running, or reading, or playing an instrument, or cross-country skiing, or doing puzzles, or cooking, or crafts, or coaching, or hiking, or . . . whatever. Something other than work!

Whatever it is, in 2018, resolve to find a few minutes a day to focus on your own well-being.

You’ve spoken. My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here. Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers. I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom. She ran the 5K, I did the half marathon. One of us won her age division, I did not. Here’s us post-race, pre-brunch.

As we enter the months where the days arehort, it’s as important as ever to keep light in our lives. To encourage that, send me your pictures of you doing something non-lawyerly. It doesn’t have to be running a race. It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend. If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

A. “Waived”

B. “Privileged”

C. “Confidential”

D. “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers: A – disclosable, and D – generally known. Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.” See generally, Rule 1.9(c)(1). I will blog on this issue later this week.

Question 3

Attorney called with an inquiry. I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’ We dropped ‘solely‘ back in 1999.”

D. Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities will include the practice of law, you can’t do it.”

B. Someone other than a client paying for Lawyer to represent that client

C. Sharing a referral fee with an attorney in a different firm

D. Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness. The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits. The scene is here and is worth re-watching. It’s a fantastically competent cross-examination of an eye-witness. And it’s funny. #lawyerlight

To Jeena’s point about securing your oxygen mask before assisting others, let’s add Tracy Richelle High’s tips in the most recent ABA Journal: 10 ways to make time for the things that matter. The tips are fantastic. You should read them. In my view, Tracy nails it in her first paragraph:

“But the answer is quite simple: You make time for the things that matter. Period.”

As a profession, we talk a lot about access to justice & access to legal services. As I see it, lawyer well-being is an access issue. Access to legal services requires a full complement of healthy and competent lawyers.

“The benefits of increased lawyer well-being are compelling and the costs of lawyer impairment are too great to ignore. There has never been a better or more important time for all sectors of the profession to get serious about the substance use and mental health of ourselves and those around us.”

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Let me re-emphasize: “These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.“

The note goes on:

“The legal profession is already struggling. Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers. We are at a crossroads. To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by a courageous commitment to re-envisioning what it means to live the life of a lawyer.”

The report is 73 pages long and makes recommendations for judges, legal employers, law schools, bar associations, professional liability carriers, and lawyers assistance programs. Most relevant to this blog, the report makes recommendations for regulators. They begin on page 25 and, per the table of contents, can be summarized as follows:

Take Actions to Meaningfully Communicate That Lawyer Well-Being is a Priority

Adopt Regulatory Objectives That Prioritize Well-Being

Modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Basic Duty of Competence

Expand Continuing Education Requirements to Include Well-Being Topics

Require Law Schools to Create Well-Being Educations for Students as an Accreditation Requirement

Adjust the Admissions Process to Support Law Student Well-Being

Reevaluate Bar Application Inquiries About Mental Health History

Adopt a Rule for Conditional Admission to Practice Law

Publish Data Reflecting Low Rate of Denied Admissions Due to Mental Health Disorders and Substance Use

I will do my part to review each recommendation for regulators with the appropriate body, whether the Professional Responsiblity Board, the Board of Bar Examiners, the Character & Fitness Committee, or the Continuing Legal Eduction Board. But, as I mentioned, the report makes recommendations for many other groups. Nearly each and every one of us fits into it at least one of those groups.